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TMI Blog2020 (9) TMI 636X X X X Extracts X X X X X X X X Extracts X X X X ..... witnesses, filed an application under Section 311 Cr.P.C on 2l.07.2015 for recalling the witnesses, however, allowed by the Trial Court on 20.01.2016. Further, another application u/s 311 was filed by complainant on 29.03.2016 for recalling of CW-8 and the same was also dismissed. 5. On 13.07.2016, while the Petitioner/ Accused No. 3 was cross examining the complainant, however, the Trial Court directed to complete the cross-examination of witness stating that the sufficient time has been given, consequently, several material and necessary questions were left in haste and could not be put to the complainant by Petitioner / Accused No. 3 to his prejudice. Thereafter, the Respondent No.1/Complainant closed the complainant evidence. 6. Learned counsel for petitioner further submits that after closing of complainant evidence, the said complainant, filed list of documents dated 14.12.2016 alongwith documents and the same were taken on record by the Trial Court. In addition to above, Respondent No.1/Complainant filed an application u/s 311 of Cr.P.C, after closing of complainant evidence, upon which arguments of both parties were heard by the Trial Court on 14.12.2016. But the Trial Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nerated record which is very much evident that according to the complainant the voice was recorded in the computer and no original such device has been produced in the court to show the recording and it has never come on record where the said conversation was recorded. viii. Ex DW1/X8 - RTI reply received by the complainant." 8. Learned counsel for petitioner further submits that defence witness, DW-2, Shri R. K. Sharma Ex- Director of M/s. Zexus Air Services, Respondent No.2/Accused No.1 was examined and the following documents were put to him during cross-examination for the first time by Respondent No.1/Complainant before the Trial Court:- "i. DW2/B-certificate of incorporation; ii. DW2 I C-RTI reply containing Form 32 and Form 11 alongwith certificate under section 65B Evidence Act; iii. Ex.DW2/D-ITR for assessment year 2014-15 of Ms. Zexus Air Services Pvt. Ltd.; iv. Ex.DW2/GNOC in favour of Ms. Zexus Air Services Pvt. Ltd. as available on website of Director General of Civil Aviation; v. Ex.DW2/H - Criminal case filed against M/s. Zexus Air Services Pvt. Ltd.; vi. Ex.DW2/I-calls received by him; Ex.DW2/J his profile at Linkedln. vii. The other documents put t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed his application filed under Section 311 Cr.P.C. ignoring the aforesaid fact and without application of mind. 12. This Court has perused the impugned order dated 29.08.2020 whereby recorded that an application under Section 311 Cr.P.C. which was filed via email on 20.08.2020 was not forwarded to the complainant side for necessary action. Vide the said application, applicant therein sought 15 days adjournment and from the averments in the application, it was seen that the complaint in CT cases 8423/2017 was filed in 2017 and it was dismissed in 2017 itself. The complainant has admitted that the Ld. MM dismissed the application uncontested at the initial stage for the reason that no prime facie allegations of cheating, etc. were there. Ld. MM was of the opinion that as per allegation only Section 138 N.I. Act complaint was made out and it was already pending (subject matter of present complaint). 13. It is further recorded that prayer sought in the said application for adjournment for 15 days was not warranted for two reasons. Firstly; the complaint was filed in 2017 and dismissed then, yet the accused side including petitioner waited till March 2020 to apply for certified copy o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds a proposed loan to be given by the accused to the complainant, which was later refused by the accused and the complainant misused the cheque in question. 16. Keeping in view the aforesaid fact, learned Trial Court opined that from the records available, this has been a consistent stand/defence of the accused and he has cross-examined the complainant. The present application states that further cross-examination is warranted for new documents which were put by complainant to defence witnesses. Although the accused side made no endeavour to substantiate as to which documents it wishes to put to complainant. Accordingly, Ld. Trial Court further opined that the records shows that DWl/accused during his cross-examination was put 2 old cheque Ex.CW1/1B and Ex.CW1/1C which were admittedly drawn by the accused/DW1. DWl/X1 (Collectively) was admitted as printout of facebook account of the accused/DW1. Ex.DWl/X1 was admitted to be the certified copy ITR of the accused/DW1. Ex.DWl/X2 was admitted to be leave to defend filed by the accused/DW1. Ex.DW1/X3 offer letter and Ex.DWl/X4 account ledger were put the accused/DW1. Ex.DWl/X5, Ex.DWl/X6 and Ex.DWl/X7 that are voice recording, certific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sses or pertains to Ms. Zexus Air Services Pvt. Ltd. Be that as it may, accused side despite being given ample opportunities, has failed to explain which document put to any of the defence witness would probably substantiate his defence taken at the time of framing of notice under Section 251 CrPC. The application therefore, for recall of complainant for further cross-examination is completely baseless. From the above discussion, this Court sees no such document which needs to be put to the complainant for further cross-examination, which would substantiate the defence of the accused in the present case. It is a settled principle of law that Section 311 Cr.P.C. cannot be allowed to fill in any lacunae in the trial or to delay the trial, as was also held in Umar Mohammad & Ors. v. State of Rajasthan, (2007) 14 SCC 711. The application dated 20.08.2020 filed on the email seeking 15 days adjournment as well as application under section 311 Cr.P.C. are hereby dismissed. Nothing expressed in this Order shall have a bearing on the merits of the present case." 18. In addition to above, learned Trial Court has considered the fact that the complainant is a Senior Citizen and the matter is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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